SECOND AMENDMENT TO AGREEMENT FOR ALLIGATOR CREEK WATERSHED MANAGEMENT PLAN PHASE II (N097)AGREEMENT NO. 09C00000108
SECOND AMENDMENT (3)
TO AGREEMENT BETWEEN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
AND
CITY OF CLEARWATER
FOR
ALLIGATOR CREEK WATERSHED MANAGEMENT PLAN PHASE II (N097)
This SECOND AMENDMENT entered into and effective this 31st day of December 2013 by
and between the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public
corporation of the State of Florida, whose address is 2379 Broad Street, Brooksville, Florida
34604 -6899, hereinafter referred to as the "DISTRICT," and CITY OF CLEARWATER, a
municipal corporation of the State of Florida whose address is 112 Osceola Avenue,
Clearwater, Florida 33756, hereinafter referred to as the "CITY ".
WITNESSETH:
WHEREAS, the DISTRICT and the CITY entered into an Agreement effective November 16,
2009 (Original Agreement), as amended October 1, 2011, for development and review of
Digital Topographic Information, and completion of the Watershed Evaluation and Watershed
Management Plan elements of the DISTRICT'S Watershed Management Program for the
Alligator Creek Watershed; and
WHEREAS, the parties hereto wish to further amend the Agreement to extend the contract
period to allow for additional time to complete Watershed Management Plan tasks, and to
update contract language applicable to the DISTRICT'S cooperatively funded projects.
NOW THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties hereby mutually agree to amend the Original Agreement,
effective November 16, 2009, as amended, as follows:
1. Paragraph 1, Project Manager and Notices, is hereby amended to replace the
DISTRICT'S Project Manager with R.J. Dowling, P.E.
2. Paragraph 3, Funding, is hereby amended to add Subparagraph 3.7 as follows:
3.7 In the event any dispute or disagreement arises during the course of the
PROJECT, including whether expenses are reimbursable under this Agreement,
the CITY will continue to perform the PROJECT work in accordance with the
Proposed Project Plan. The CITY is under a duty to seek clarification and
resolution of any issue, discrepancy, or dispute by providing the details and basis
of the dispute to the DISTRICT'S Project Manager no later than ten (10) days after
the precipitating event. If not resolved by the Project Manager, in consultation with
his or her Bureau Chief, within ten (10) days of receipt of notice, the dispute will be
forwarded to the DISTRICT'S Executive Director. The DISTRICT'S Executive
Director in consultation with the DISTRICT'S Office of General Counsel will issue
the DISTRICT'S final determination. The CITY'S continuation of the PROJECT
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work as required under this provision shall not constitute a waiver of any legal
remedy available to the CITY concerning the dispute.
3. Paragraph 4, Contract Period, is hereby amended to extend the expiration date of
December 31, 2013, in the First Amendment, to May 31, 2014.
4. Paragraph 8, Liability, is hereby replaced in its entirety with new Paragraph 8, Risk,
Liability and Indemnity, as follows:
8. RISK, LIABILITY, AND INDEMNITY.
8.1 To the extent permitted by Florida law, the CITY assumes all risks relating to
the PROJECT and agrees to be solely liable for, and to indemnify and hold
the DISTRICT harmless from all claims, loss, damage and other expenses,
including attorneys' fees and costs and attorneys' fees and costs on appeal,
arising from the implementation of the PROJECT; provided, however, that
the CITY shall not indemnify for that portion of any loss or damages
proximately caused by the negligent act or omission of the DISTRICT'S
officers, employees, contractors and agents. The acceptance of the
DISTRICT'S funding by the CITY does not in any way constitute an agency
relationship between the DISTRICT and the CITY.
8.2 The CITY agrees to indemnify and hold the DISTRICT harmless, to the
extent allowed under Section 768.28, F.S., from all claims, loss, damage and
other expenses, including attorneys' fees and costs and attorneys' fees and
costs on appeal, arising from the negligent acts or omissions of the CITY'S
officers, employees, contractors and agents related to its performance under
this Agreement.
8.3 This Paragraph 8 shall not be construed as a waiver of the CITY'S sovereign
immunity or an extension of CITY'S liability beyond the limits established in
Section 768.28, F.S. Additionally, this Paragraph 8 will not be construed to
impose contractual liability on the CITY for underlying tort claims as
described above beyond the limits specified in Section 768.28, F.S., nor be
construed as consent by the CITY to be sued by third parties in any manner
arising out of this Agreement.
8.4 Nothing in this Agreement shall be interpreted as a waiver of the DISTRICT'S
sovereign immunity or an extension of its liability beyond the limits
established in Section 768.28, F.S., nor be construed as consent by the
DISTRICT to be sued by third parties in any manner arising out of this
Agreement.
5. New Paragraphs 24, Repayment; 25, Governing Law; 26, Severability; and 27, Survival
are hereby added as follows:
24. REPAYMENT.
24.1 The CITY shall repay the DISTRICT all funds the DISTRICT paid to the CITY
under this Agreement, if: a) the CITY fails to complete the PROJECT in
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accordance with the terms and conditions of this Agreement, including failing
to meet the measurable benefit; b) the DISTRICT determines, in its sole
discretion and judgment, that the CITY has failed to maintain scheduled
progress of the PROJECT thereby endangering the timely performance of
this Agreement; c) the CITY fails to appropriate sufficient funds to meet the
task deadlines, unless extended in accordance with Paragraph 1.1; or d) a
provision or provisions of this Agreement setting forth the requirements or
expectations of a measurable benefit resulting from the PROJECT is held to
be invalid, illegal or unenforceable during the term of this Agreement. Should
any of the above conditions exist that require the CITY to repay the
DISTRICT, this Agreement shall terminate in accordance with the procedure
set forth in Paragraph 9, Default.
24.2 Notwithstanding the above, the parties acknowledge that if the completed
PROJECT fails to meet the measurable benefit specified in this Agreement,
the CITY may request the DISTRICT Governing Board to waive the
repayment obligation, in whole or in part.
24.3 In the event the CITY is obligated to repay the DISTRICT under any provision
of this Agreement, the CITY shall repay the DISTRICT within a reasonable
time, as determined by the DISTRICT in its sole discretion.
24.4 The CITY shall pay attorneys' fees and costs incurred by the DISTRICT,
including appeals, as a result of CITY'S failure to repay the DISTRICT as
required by this Agreement.
25. GOVERNING LAW. This Agreement is governed by Florida law and venue for
resolving disputes under this Agreement shall be in Hernando County, Florida.
26. SEVERABILITY. If any provision or provisions of this Agreement shall be held to
be invalid, illegal, or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Notwithstanding the above, if a provision or provisions of this Agreement setting
forth the requirements or expectations of a measurable benefit resulting from the
PROJECT is held to be invalid, illegal or unenforceable during the term of this
Agreement, this Agreement shall terminate in accordance with Subparagraph 24.1.
27. SURVIVAL. The provisions of this Agreement that require performance after the
expiration or termination of this Agreement shall remain in force notwithstanding
the expiration or termination of this Agreement including Subparagraph 3.1 and
Paragraphs 5, 6, 7, 8, 16, 24, and 26, and any provisions requiring an offset or
other continuing resource benefit.
6. Exhibit "A," Paragraph 5, Completion Dates, is hereby amended to complete the
PROJECT by March 31, 2014.
7. The Anticipated Overall Performance Schedule in Paragraph 1.2 of Exhibit "B" is hereby
amended to complete the Watershed Management Plan by March 31, 2014.
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8. The terms, covenants and conditions set forth in the Original Agreement, as amended,
that have not been specifically amended herein, will continue in existence, are hereby
ratified, approved and confirmed, and will remain binding upon the parties hereto.
IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed
this SECOND AMENDMENT on the day and year set forth next to their signatures below.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
By:
Mark A. Hammond, P.E. Date
Director, Resource Management Division
CITY OF CLEARWATER
By: — `Q't%11en crtk(k"
George N. Cretekos, Mayor
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Date
By: 10c,�- �'
William B. Horne II, City Manager Date
Approved as to form:
Leslie K.
Assistant
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y Attorney
Attest:
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Rosemarie Call
City Clerk
SECOND AMENDMENT
TO AGREEMENT BETWEEN THE
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
AND
CITY OF CLEARWATER
FOR
ALLIGATOR CREEK WATERSHED MANAGEMENT PLAN PHASE II (N097)
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